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Thomas v. Goodrich6/19/2001
Appeal by defendant from opinion and award of the North Carolina Industrial Commission filed 19 January 2000. Heard in the Court of Appeals 15 May 2001.
B.F. Goodrich (Defendant) appeals an opinion and award of the Full Commission of the North Carolina Industrial Commission (the Commission) filed 19 January 2000.
The record shows that Gregory N. Thomas (Plaintiff) suffered a compensable injury on 3 June 1986 while employed by Defendant. In an opinion and award filed 26 February 1990, a deputy commissioner of the North Carolina Industrial Commission concluded Plaintiff was totally and permanently disabled as a result of his compensable injury. Pursuant to the 26 February 1990 opinion and award, Defendant was ordered to pay Plaintiff "compensation for total disability for the remainder of his life, return to work, or change of condition, whichever first occurs, at the rate of $197.34 per week beginning from 3 June 1986." Additionally, the 26 February 1990 opinion and award contained the following provision:
3. A reasonable attorney['s] fee of twenty-five (25%) percent of the compensation due laintiff is approved for laintiff's counsel and shall be paid as follows: twenty-five (25%) of the lump sum due laintiff shall be deducted from that sum and paid directly to laintiff's counsel. Every fourth compensation check, thereafter, shall be deducted from the sum due laintiff and paid directly to laintiff's counsel.
Subsequent to entry of the 26 February 1990 opinion and award, Defendant began making weekly payments to Plaintiff in the amount of $197.34. Although the 26 February 1990 opinion and award ordered Defendant to send every fourth check to Plaintiff's counsel, Defendant forwarded every check, including every fourth check, directly to Plaintiff. Defendant continued to pay Plaintiff in this manner until January 1996, which resulted in Plaintiff receiving $15,195.18 in funds that Defendant should have forwarded to Plaintiff's counsel rather than to Plaintiff. On 8 January 1996, Defendant "changed servicing agents and the new servicing agent began sending every fourth compensation check directly to laintiff's attorney."
On 4 October 1996, Plaintiff filed a motion with the Industrial Commission requesting that Defendant be compelled to pay to Plaintiff's counsel all attorney's fees due under the 26 February 1990 opinion and award that remained unpaid. In an order filed 27 November 1996, the executive secretary of the Commission ordered:
that efendant pay to laintiff's counsel all attorney['s] fees due pursuant to the February 26, 1990 pinion and ward and subsequent Orders, which have not been paid within thirty (30) days of this Order. Plaintiff's counsel should have received every fourth check from the entry of the pinion and ward and continuing.
Defendant did not appeal the 27 November 1996 order. In compliance with the 27 November 1996 order, on 10 February 1997, Defendant forwarded to Plaintiff's counsel attorney's fees in the amount of $15,195.18. However, on 28 February 1997, Defendant sent a letter to the executive secretary of the Industrial Commission stating that Plaintiff, as a result of receiving funds that should have been forwarded by Defendant to Plaintiff's counsel, received "an overpayment of temporary . . . benefits." Also in the letter, Defendant inquired as to whether it was "allowed a credit for this money paid and how should go about taking this credit from [Plaintiff's] future payments." In a letter of response dated 7 May 1997, the executive secretary informed Defendant that she was "not inclined to award a credit for attorney['s] fees" and that, should Defendant wish to pursue this matter,
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